CFPH, LLC

Patent Trials and Appeals Board

Feb 16, 2022

2020006150 (P.T.A.B. Feb. 16, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/924,866 06/24/2013 Dean P. Alderucci 09-2305-C2 4164 63710 7590 02/16/2022 CANTOR FITZGERALD, L.P. INNOVATION DIVISION 110 EAST 59TH STREET NEW YORK, NY 10022 EXAMINER LARSEN, CARL VICTOR ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 02/16/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Caitlyn.kelly@chareiter.com gabriella.zisa@chareiter.com patentdocketing@cantor.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte DEAN P. ALDERUCCI, CHARLES PLOTT, and MARK A. MILLER ____________ Appeal 2020-006150 Application 13/924,866 Technology Center 3700 ____________ Before CHARLES N. GREENHUT, BENJAMIN D. M. WOOD, and WILLIAM A. CAPP, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1-9, 12-17, 21, and 25 under 35 U.S.C. § 101 as directed to a judicial exception to patentable subject matter.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies CHPH, LLC as the applicant and real party in interest. Appeal Br. 3. 2 A ground of rejection under 35 U.S.C. § 112 for indefiniteness has been withdrawn by the Examiner. Final Act. 2; Ans. 4. Appeal 2020-006150 Application 13/924,866 2 THE INVENTION Appellant’s invention entails a computerized wager game, such as poker. Spec. 16-23. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A machine implemented method comprising: providing, by at least one processor of at least one computer in electronic communication with a plurality of other computers via an electronic communications network, first electronic data comprising first information about a plurality of sets of elements to cause a first interactive computerized kiosk to render the first information on a first graphical user interface of the first interactive computerized kiosk of a first user, each element having an associated indicia, the plurality of sets of elements comprising at least a first set of elements and a second set of elements, the first and second sets of elements having a plurality of nonoverlapping elements such that the first set of elements comprises a first member that is not in the second set of elements and the second set of elements comprises a second member that is not in the first set of elements, wherein the first information identifies at least one indicia associated with a respective at least one first element of the first set of elements, wherein the at least one first element of the first set of elements comprises at least one element of the first set of elements but less than all elements of the first set of elements such that the first member of the first set of elements is not identified to the first user; causing the first interactive computerized kiosk to not render data representing the first member of the first set of elements on a first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user; providing second electronic data comprising second information about at least one set of the plurality of sets of elements to cause a second interactive computerized kiosk to render the second information on a second output portion of a second graphical user interface of the second interactive computerized kiosk of a second user, wherein the second information identifies at least one first indicia associated with a respective at least one first element of the second set of elements, Appeal 2020-006150 Application 13/924,866 3 wherein the at least one first element of the second set of elements comprises at least one element of the second set of elements but less than all elements of the second set of elements such that the second member of the second set of elements is not identified to the second user; causing the second interactive computerized kiosk to not render data representing the second member of the second set of elements on the second output portion of the second graphical user interface of the second interactive computerized kiosk of the second user; for at least one set of the plurality of sets of elements, providing third electronic data comprising third information to the first interactive computerized kiosk of the first user and the second interactive computerized kiosk of the second user, wherein, for the at least one set of the plurality of sets of elements, the third information comprises a value indicating a respective number of first wagers that each set of the at least one set of the plurality of sets of elements will be a winning set, and to cause the first interactive computerized kiosk to render the third information on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user and cause the second interactive computerized kiosk to render the third information on the second output portion of the second graphical user interface of the second interactive computerized kiosk of the second user; for each of the at least one set of the plurality of sets of elements, updating the third information based on any respective additional first wagers placed after at least one of the first information, the second information, and the third information was provided, in which the act of updating the third information comprises providing updated electronic data comprising updated information to cause the first interactive computerized kiosk to render the updated information on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user and cause the second interactive computerized kiosk to render the updated information on the second output portion of the second graphical user interface of the second interactive computerized kiosk of the second user; Appeal 2020-006150 Application 13/924,866 4 determining whether to cause the first interactive computerized kiosk to render, on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user, a first user interactive graphical object to allow the first user to interact with the first user interactive graphical object to cause evaluation of updated information related to wagers of the first user and then to display first data representing first virtual awards associated with the evaluation of the updated information related to wagers of the first user; generating commands to cause the first interactive computerized kiosk to render, on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user, user selectable gaming graphical objects to allow the first user to cause the first interactive computerized kiosk to execute virtual gaming transactions, and in response to selection of one of the user selectable gaming graphical objects: (a) causing to execute a virtual gaming transaction associated with the selected gaming graphical object, (b) determining whether to generate a virtual award based on a result of the execution of the virtual gaming transaction, (c) determining whether to cause the first interactive computerized kiosk to render, on the first output portion determining whether to cause the first interactive computerized kiosk to render, on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user, graphical representations of the virtual award including credits or money determined from a payoff table which is stored in memory of the first interactive computerized kiosk, and (d) determining whether to cause the first interactive computerized kiosk to render, on the first output portion of the first graphical user interface of the first interactive computerized kiosk of the first user, graphical representations of the payoff table to allow the first user to assess the result of the virtual gaming transaction and the virtual award. Appeal 2020-006150 Application 13/924,866 5 OPINION Appellant argues claims 1-9, 12-17, 21, and 25 as a group. Appeal Br. 14-20. Claim 1 is representative. See 37 C.F.R. §41.37(c)(1)(iv). An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court interprets 35 U.S.C. § 101 as excluding abstract ideas from patentable subject matter. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014); Bilski v. Kappos, 561 U.S. 593, 601 (2010). The Supreme Court has set forth a framework for distinguishing patents that claim abstract ideas from those that claim patent-eligible applications of such ideas. Alice, 573 U.S. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66, 72-73 (2012)). According to the Supreme Court’s Alice/Mayo framework, we must first determine whether the claims at issue are directed to an abstract idea. Id. “If so, we must consider the elements of each claim both individually and as an ordered combination to determine whether additional elements transform the nature of the claim into a patent-eligible application.” Id. The Supreme Court characterizes the second step of the analysis as “a search for an ‘inventive concept’ - i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.”’ Id. (quoting Mayo, 566 U.S. at 72-73). The Examiner determines that claims 1-9, 12-17, 21, and 25 are directed to an abstract idea. Final Action 2. More particularly, the Examiner finds that claim 1 entails providing game data to users, collecting wagering information from the users, updating the game information based Appeal 2020-006150 Application 13/924,866 6 on such wagering information, and providing updated game information to the users. Id. at 2-3. The Examiner further finds that the claim includes the abstract elements of arranging virtual wagering determining the outcome of gaming transactions. Id. at 3. The Examiner finds that Appellant’s rules for conducting a wagering game is an example of a fundamental economic practice that courts identify as an abstract idea. Ans. 7. The Examiner finds that Appellant’s abstract idea is not integrated into a practical application because the recited process merely includes methods of organizing human activity by arranging financial obligations between users and managing interactions between people through abstract game rules implemented on general purpose computers. Id. Finally, the Examiner finds that the claims do not include additional elements that are sufficient to amount to significantly more than the abstract idea judicial exception. Id. According to the Examiner, the additional elements are generic computer elements that merely enable the abstract process to be done on a computer and extra solution activity of providing an interface to enable the user to select wagering activity and virtual wagering options on the generic computer. These elements are merely “apply it” type limitations to general computers, labeled as kiosks. Id. at 4. The PTO has published guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (hereinafter the “Guidelines”). Under the Guidelines, in conducting step one of the Alice framework, we first look to whether the claim recites: (1) a judicial exception such as an abstract idea; and (2) additional elements that integrate the judicial exception into a practical application. Id., see also MPEP § 2106.05(a)-(c), (e)-(h). Appeal 2020-006150 Application 13/924,866 7 Step 1, Prong 1 The Guidelines identify as abstract ideas: (a) mathematical concepts; (b) mental processes; and (c) methods of organizing human activity. Here, there is no question that claim 1 recites an abstract idea in the form of a wagering game, which qualifies both as a fundamental economic practice and a method of organizing human activity. See In re Smith, 815 F.3d 816, 818-19 (Fed. Cir. 2016) (explaining that a wagering game is a method of exchanging and resolving financial obligations); see also In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160 (Fed. Cir. 2018) (explaining that a wagering game is a method of organizing human activity). Step 1, Prong 2 Under Prong 2 of Step 1 of the Guidelines, we do not assume that such claims are directed to patent ineligible subject matter because “‘all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.’” In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (quoting Alice, 573 U.S. at 2354). Instead, “the claims are considered in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.” McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016). If the claims are not directed to an abstract idea, the inquiry ends. Guidelines. If the claims are “directed to” an abstract idea, then the inquiry proceeds to the second step of the Alice framework. Id. Consequently, we consider whether the claimed computerized game includes additional elements that integrate the judicial exception into a practical application. A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a Appeal 2020-006150 Application 13/924,866 8 manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception. Guidelines. In the instant case, Appellant argues that its abstract idea is integrated into a practical application because it provides an improvement in the functioning of a computer. Appeal Br. 16. In explaining this position, Appellant states: [T]hese techniques help improve computer performance by providing virtual representation of a physical system that includes an interactive kiosk integrated with a user interface that provides graphical objects to allow a user to cause execution of gaming transactions and processing of virtual awards associated with the transactions and payoff tables. Furthermore, in one example, these techniques help control activity over the network and control computer performance. This allows the computer to perform a function not previously performable by a computer. Id. at 16-17 (emphasis omitted). To the foregoing, Appellant adds that the invention provides a kiosk that is: integrated with a user interface that provides graphical objects to allow a user to cause execution of gaming transactions and processing of virtual awards associated with the transactions and payoff tables. In one example, these techniques help manage activity over the network and help control computer performance. Id. at 17. Appellant relies on the case Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir. 2018) for the proposition that an improved user interface is patent eligible. Appeal Br. 18. Appellant argues that its user interface allows a user to cause execution of gaming transactions Appeal 2020-006150 Application 13/924,866 9 process awards associated with the transactions and that such capability brings the invention within the scope of the holding in Core Wireless. Id. In response, the Examiner finds that Appellant’s interactive kiosk is merely one of many generic computer devices that can be used to implement the abstract idea. Ans. 8. The Examiner finds that Appellant’s computer input, output and communication devices are claimed generically and at a high level of generality. Id. The Examiner emphasizes that the claims do little more than claim that the abstract idea is performed using a computer network as a tool and that no particular improvement is evident outside of implementing the abstract idea on a computer. Id. With respect to Appellant’s argument based on Core Wireless, the Examiner finds that Appellant’s claims do not recite any specific improvements to a user interface. Id. at 9. The Examiner finds that Appellant’s claims recite generic high-level functionality that is performed in response to generic user interface elements and presented as generic user interface output. Id. According to the Examiner, Appellant’s high-level recitation of such generic elements merely serves to instruct their use as a tool to implement the abstract idea. That an abstract idea is implemented on a computer via a generic graphical user interface is not considered by the Examiner to be the kind of technological improvement necessary to integrate an abstract idea into a practical application. Ans. 9-10. Appellant submits a Reply Brief that is one paragraph of eight lines of text in length. Reply Br. 2. In its reply, Appellant merely stands by its Appeal Brief arguments and makes no effort to rebut the Examiner’s critique of Appellant’s Core Wireless argument. Appeal 2020-006150 Application 13/924,866 10 We are not persuaded by Appellant’s arguments that the claims are directed to a practical application of the abstract idea. In particular, we do not agree that Appellant’s invention is in anyway analogous to Core Wireless. Core Wireless involved a user interface that features a particular manner of summarizing and presenting information on electronic devices. Core Wireless, 880 F.3d at 1362. Claim 1 of the ’476 patent requires “an application summary that can be reached directly from the menu,” specifying a particular manner by which the summary window must be accessed. The claim further requires the application summary window list a limited set of data, “each of the data in the list being selectable to launch the respective application and enable the selected data to be seen within the respective application.” This claim limitation restrains the type of data that can be displayed in the summary window. Finally, the claim recites that the summary window “is displayed while the one or more applications are in an un-launched state,” a requirement that the device applications exist in a particular state. Id. at 1362-63. According to the court, the claim limitations at issue “disclose a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods to display a generic index on a computer.” Id. at 1363. It is well-settled that the mere practice of collecting, analyzing, and displaying data, without more, is considered to be unpatentable subject matter under the abstract idea exclusion to Section 101. FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1097-98 (Fed. Cir. 2016). The Alice case involved a scheme for managing financial risk. Alice, 573 U.S. at 212. Similarly, the Bilski case involved a method for hedging against the financial risk. Bilski, 561 U.S. at 610. Here, Appellant is not saved because Appeal 2020-006150 Application 13/924,866 11 the particular financial transaction and risk involved is gambling in a gaming environment. Appellant merely provides the user with a graphical user interface that enables the user to play a wagering game. Appellant does not direct us to any recitations in the claims or any disclosure in the Specification that so summarizes, organizes, and selectively filters and displays information related to the game that the claim can be considered to be “directed to” a “practical application” of the abstract idea. Almost every computerized wager game has a user interface that includes a graphic display by which the user interacts with the game software to play the game. Were we to accept Appellant’s position, any and every computer gaming device with a display screen would be deemed a practical application of an abstract idea. Merely displaying game related information on a computer (kiosk) screen does not rise to the level of a practical application of the abstract idea. Step 2 Turning to step two of the Alice/Mayo framework, the Examiner determines that the additional elements of Appellant’s claimed computerized gaming method, considered both individually and in combination, do not amount to significantly more than the abstract idea of playing a dice game. Final Action 3. Appellant argues that the Examiner’s rejection fails to comply with Guidelines because it does not contain findings in accordance with the PTO’s so-called Berkheimer memo that was published after the Federal Circuit’s decision in Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Appeal 2020-006150 Application 13/924,866 12 Cir. 2018).3 Appeal Br. 19. With respect to “additional elements,” Appellant argues that the invention includes an interactive kiosk that is integrated with a user interface that provides graphical objects that allow a user to cause execution of gaming transactions and processing of virtual awards. Appeal Br. 19. Appellant argues that the “techniques” that “provide for implementation” of the kiosk and interface are not well- understood, routine, or conventional. Id. However, Appellant does not appear to contend that the kiosk itself or any of the other computer components that implement the claimed method are not well-understood, routine, or conventional. See generally Appeal Br. Appellant’s argument is not persuasive. The “techniques” that Appellant asserts are not well-understood, routine, or conventional are actually just the software implementation of the abstract idea itself. However, the phrase “additional elements” means what it says. They are elements of the claim that are in “addition to” the recital of an abstract idea. Guidelines, 84 Fed. Reg. at 55, n.24. Even if we assume that the techniques claimed are “[g]roundbreaking, innovative, or even brilliant,” that is not enough for eligibility. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). We have reviewed the Examiner’s rejection and Answer and Appellant’s Specification and it is our view that the rejection demonstrates the claimed subject matter ineligible. Among other things, it is established that a patent applicant is required to submit a specification that contains a 3 Memorandum from the U.S. Patent & Trademark Office, Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) (Apr. 19, 2018). Appeal 2020-006150 Application 13/924,866 13 written description of the invention in “full, clear, concise, and exact terms.” 35 U.S.C. § 112(a). Appellant’s Specification admits that computers used in the invention may be general purpose computers. Spec. 9. Similarly, the Specification teaches that: Various embodiments can be configured to work in a network environment including a computer that is in communication (e.g., via a communications network) with one or more devices. The computer may communicate with the devices directly or indirectly, via any wired or wireless medium (e.g. the Internet, LAN, WAN or Ethernet, Token Ring, a telephone line, a cable line, a radio channel, an optical communications line, commercial on-line service providers, bulletin board systems, a satellite communications link, a combination of any of the above). Each of the devices may themselves comprise computers or other computing devices, such as those based on the Intel® Pentium® or CentrinoTM processor, that are adapted to communicate with the computer. Any number and type of devices may be in communication with the computer. Id. at 12. In short, Appellant describes the computer technology used by the invention at a high level of generality that presumes familiarity on the part of the reader. Appellant provides neither evidence nor persuasive technical reasoning that its invention entails an improvement in computer technology. See generally Appeal Br. For purposes of the Alice/Mayo analysis, a specification demonstrates the well-understood, routine, conventional nature of step 2 “additional elements” when it describes them in a manner that indicates they are sufficiently well-known that they need not be described with particularity to satisfy 35 U.S.C. § 112(a). Berkheimer memo, III.A.1. That is the case here. Essentially, all Appellant has done here is to take certain casino gambling card games and implemented playing of the games in a computer Appeal 2020-006150 Application 13/924,866 14 network environment with slightly modified rules (e.g. Spec. 16) and payout procedures (e.g., Spec. 24). Accordingly, for the above reasons, the recited elements of claim 1, considered individually and as an ordered combination, do not constitute an “inventive concept” that transforms independent claim 1 into patent-eligible subject matter. On this record, we sustain the Examiner’s § 101 rejection of claim 1, as well as claims 2-9, 12-17, 21, and 25, which fall with claim 1. CONCLUSION Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1-9, 12-17, 21, 25 101 Eligibility 1-9, 12-17, 21, 25 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED